17-952-cr 

United States v. Pereira-Gomez

In the

United States Court of Appeals

for the Second Circuit

AUGUST TERM 2017

No. 17-952-cr

UNITED STATES OF AMERICA,

Appellee,

v.

MANUEL PEREIRA-GOMEZ, AKA Manuel Jesus

Pereira, AKA Manuel Pereiro, AKA Manny Pereira,

Defendant-Appellant.

On Appeal from the United States District Court

for the Eastern District of New York

SUBMITTED: MARCH 9, 2018

DECIDED: SEPTEMBER 7, 2018
2

Before: CABRANES and CARNEY, Circuit Judges, and CAPRONI, District 

Judge.*

Defendant-Appellant Manuel Pereira-Gomez (“Pereira”) 

appeals from a March 29, 2017 judgment of the United States District 

Court for the Eastern District of New York (Joan M. Azrack, Judge). The 

District Court convicted Pereira, following his plea of guilty, of illegal 

reentry into the United States after previously having been deported 

after the commission of an aggravated felony, in violation of 8 U.S.C. 

§§ 1326(a) and 1326(b)(2), and sentenced him principally to 46 months’ 

incarceration to be followed by three years of supervised release. On 

appeal, Pereira argues that the District Court erred when it concluded 

that his prior New York conviction for attempted robbery in the 

second degree, in violation of N.Y. Penal Law §§ 110.00 and 160.10, 

qualified as a “crime of violence” for enhancement purposes under 

Section 2L1.2 of the November 1, 2014 United States Sentencing 

Guidelines.

This case presents two questions:

(1) Whether attempted robbery in the second degree under New 

York law is a “crime of violence” under the “enumerated 

offenses” of application note 1(B)(iii) to Section 2L1.2 of the 

 * Judge Valerie Caproni, of the United States District Court for the Southern 

District of New York, sitting by designation.
3

November 1, 2014 edition of the Sentencing Guidelines; and, 

if not,

(2) Whether attempted robbery in the second degree under New 

York law is a “crime of violence” under the “force clause” of 

application note 1(B)(iii) to Section 2L1.2 of the November 1, 

2014 edition of the Sentencing Guidelines.

We conclude that attempted robbery in the second degree, in 

violation of N.Y. Penal Law §§ 110.00 and 160.10, is not a “crime of 

violence” under the “enumerated offenses,” but is a “crime of 

violence” under the “force clause.”

Accordingly, we AFFIRM the District Court’s judgment.

Raymond A. Tierney, Assistant United 

States Attorney (Susan Corkery, Assistant 

United States Attorney, on the brief), for 

Bridget M. Rohde, Acting United States 

Attorney for the Eastern District of New 

York, Brooklyn, NY, Appellee.

Barry D. Leiwant, Federal Defenders of 

New York, Inc., New York, NY, for 

Appellant-Defendant.
4

JOSÉ A. CABRANES, Circuit Judge:

Defendant-appellant Manuel Pereira-Gomez (“Pereira”) 

appeals from a March 29, 2017 judgment of the United States District 

Court for the Eastern District of New York (Joan M. Azrack, Judge). The 

District Court convicted Pereira, following his plea of guilty, of illegal 

reentry into the United States after previously having been deported 

after the commission of an aggravated felony, in violation of 8 U.S.C. 

§§ 1326(a) and 1326(b)(2), and sentenced him principally to 46 months’

incarceration to be followed by three years of supervised release. On 

appeal, Pereira argues that the District Court erred when it concluded 

that his prior New York conviction for attempted robbery in the 

second degree, in violation of N.Y. Penal Law §§ 110.001 and 160.10,2

 1 N.Y. Penal Law § 110.00 provides: “A person is guilty of an attempt to 

commit a crime when, with intent to commit a crime, he engages in conduct which 

tends to effect the commission of such crime.”

2 N.Y. Penal Law § 160.10 provides:

A person is guilty of robbery in the second degree when he forcibly steals 

property and when:

1. He is aided by another person actually present; or

2. In the course of the commission of the crime or of immediate flight 

therefrom, he or another participant in the crime:

(a) Causes physical injury to any person who is not a participant in 

the crime; or

(b) Displays what appears to be a pistol, revolver, rifle, shotgun, 

machine gun or other firearm; or

3. The property consists of a motor vehicle, as defined in section one 

hundred twenty-five of the vehicle and traffic law.
5

qualified as a “crime of violence” for enhancement purposes under 

Section 2L1.2 of the November 1, 2014 United States Sentencing 

Guidelines (“2014 Guidelines”).3

This case presents two questions:

(1) Whether attempted robbery in the second degree under New 

York law is a “crime of violence” under the “enumerated 

offenses” of application note 1(B)(iii) to Section 2L1.2 of the 

November 1, 2014 edition of the Sentencing Guidelines; and, 

if not,

(2) Whether attempted robbery in the second degree under New 

York law is a “crime of violence” under the “force clause” of 

application note 1(B)(iii) to Section 2L1.2 of the November 1, 

2014 edition of the Sentencing Guidelines.

We conclude that attempted robbery in the second degree, in 

violation of N.Y. Penal Law §§ 110.00 and 160.10, is not a “crime of 

 

Robbery in the second degree is a class C felony.

3 Both Pereira and the government assume that the November 1, 2015

version of the United States Sentencing Guidelines (“2015 Guidelines”) was in place 

when Pereira committed the offenses at issue in this appeal. But the October 21, 

2015 Indictment—itself filed before November 1, 2015—charged that the offenses 

were committed “[o]n or about September 5, 2015,” when the 2014 Guidelines were 

in place. App’x at 8. We therefore refer to the 2014 Guidelines, not the 2015 

Guidelines, when discussing the version of the Guidelines in place when Pereira 

violated 8 U.S.C. §§ 1326(a) and 1326(b)(2). As the Guidelines provisions at issue in 

this case are identical in the 2014 and 2015 Guidelines, this correction does not affect 

our analysis.
6

violence” under the “enumerated offenses,” but is a “crime of 

violence” under the “force clause.”4

Accordingly, we AFFIRM the District Court’s judgment.

I. BACKGROUND

In 1997, Pereira pleaded guilty in New York state court to 

attempted robbery in the second degree. He was subsequently 

deported from the United States on three occasions. After reentering 

the United States a fourth time, he was arrested for, inter alia, felony 

offenses of driving while intoxicated and aggravated unlicensed 

operation of a motor vehicle. On October 21, 2015, Pereira was indicted 

for having been found in the United States, on or about September 5, 

 4 Application note 1(B)(iii) of Section 2L1.2 of the November 2014 Guidelines 

provided:

“Crime of violence” means any of the following offenses under 

federal, state, or local law: murder, manslaughter, kidnapping, 

aggravated assault, forcible sex offenses (including where consent 

to the conduct is not given or is not legally valid, such as where 

consent to the conduct is involuntary, incompetent, or coerced), 

statutory rape, sexual abuse of a minor, robbery, arson, extortion, 

extortionate extension of credit, burglary of a dwelling, or any other 

offense under federal, state, or local law that has as an element the use, 

attempted use, or threatened use of physical force against the person of 

another. 

The “force clause” is emphasized above.
7

2015, after having been previously deported from the United States 

following a conviction for an aggravated felony.5

On March 23, 2016, Pereira pleaded guilty to the charges against 

him. He and the government, however, were unable to reach a plea 

agreement because they disputed the applicable advisory Guidelines 

range. 

At the time of sentence, Pereira argued that the District Court 

should apply the 2014 Guidelines, which were in place when he 

violated 8 U.S.C. §§ 1326(a) and 1326(b)(2), because the 2014 

Guidelines set forth a lower advisory range than the November 1, 2016 

Guidelines Manual (“2016 Guidelines”) in effect at the time of Pereira’s 

sentencing.6 He further contended that under the 2014 Guidelines, his 

1997 conviction for attempted robbery in the second degree was not a 

“crime of violence” that triggered a 16-level prior offense 

enhancement under Guidelines Section 2L1.2(b)(1)(A).7 Finally, 

 5 See note 3 and accompanying text, ante.

6 A sentencing court typically applies the Guidelines Manual in place at the 

time of sentencing, which here would be the 2016 Guidelines. However, “there is 

an ex post facto violation when a defendant is sentenced under Guidelines 

promulgated after he committed his criminal acts and the new version provides a 

higher applicable Guidelines sentencing range than the version in place at the time 

of the offense.” Peugh v. United States, 569 U.S. 530, 533 (2013). Accordingly, the 

sentencing court would be required to apply the 2014 Guidelines if that version

provided a lower sentencing range than the 2016 Guidelines. See also note 4, ante.

7 In the 2014 Guidelines, Section 2L1.2(b)(1)(A) provided: 
8

Pereira argued that, absent the 16-level enhancement, his total 

adjusted offense level was 10, yielding an advisory Guidelines range 

of 15 to 21 months’ imprisonment.

The government calculated Pereira’s advisory Guidelines range

under both the 2014 and the 2016 Guidelines. Under the 2014 

Guidelines, the government argued, Pereira’s 1997 conviction 

qualified as “crime of violence”—thus resulting in a 16-level 

enhancement and a total adjusted offense level of 21. Based on 

Pereira’s criminal history category of IV, the government arrived at a 

2014 Guidelines advisory range of 57 to 71 months’ imprisonment. 

Under the 2016 Guidelines, by contrast, the government argued that 

Pereira’s total offense level fell to 19 with a corresponding advisory

range of 46 to 57 months’ imprisonment.8

 

If the defendant previously was deported, or unlawfully remained in the 

United States, after—

(A) a conviction for a felony that is (i) a drug trafficking offense for 

which the sentence imposed exceeded 13 months; (ii) a crime of 

violence; (iii) a firearms offense; (iv) a child pornography offense; 

(v) a national security or terrorism offense; (vi) a human trafficking 

offense; or (vii) an alien smuggling offense, increase by 16 levels if 

the conviction receives criminal history points under Chapter Four 

or by 12 levels if the conviction does not receive criminal history 

points.

8 The government computed a lower sentence range under the 2016 

Guidelines because Section 2L1.2(b)(1) of the 2016 Guidelines eliminated the use of 

the term “crime of violence,” and instead based the enhancement primarily on the 

length of the sentence imposed for the prior offense.
9

The District Court sentenced Pereira on March 29, 2017. It

determined that Pereira’s prior conviction was a “crime of violence” 

under the 2014 Guidelines. The District Court then applied the 2016 

Guidelines, which produced a lower range, and sentenced Pereira 

principally to 46 months’ imprisonment to be followed by three years 

of supervised release.9

This appeal followed.

II. DISCUSSION

On appeal, Pereira argues that the District Court erred in finding 

that his prior New York state conviction for attempted robbery in the 

second degree is a “crime of violence” under Section 2L1.2 of the 2014

Guidelines. Specifically, he contends that his prior conviction does not 

qualify as a “crime of violence” under either the “enumerated 

offenses” or the “force clause” of application note 1(B)(iii) of 

Section 2L1.2.

We agree with Pereira that his prior conviction is not a “crime 

of violence” under the “enumerated offenses” in application note 

1(B)(iii). We conclude, however, that his prior conviction is a crime of 

 9 As the Supreme Court reminds us, the Guidelines merely “guide district 

courts in exercising their [sentencing] discretion . . . , but they do not constrain that 

discretion.” Beckles v. United States, 137 S. Ct. 886, 894 (2017) (internal quotation 

marks and alterations omitted). Because Pereira’s sentence falls within the statutory 

range, the District Court had the discretion to impose that sentence regardless of 

whether Pereira’s prior conviction was, in fact, a “crime of violence” under the 2014 

Guidelines.
10

violence under the application note’s “force clause.” Accordingly, we 

affirm the judgment of the District Court.

A. Standard of Review

When reviewing Guidelines calculations, we ordinarily “apply 

a de novo standard to legal conclusions and we accept the sentencing 

court’s factual findings unless they are clearly erroneous.”10 But where 

a defendant raises arguments for the first time on appeal, “we review 

his claims for plain error.”11 We apply the plain error standard “less 

stringently in the sentencing context, where the cost of correcting an 

unpreserved error is not as great as in the trial context.”12

B. The “Enumerated Offenses” Analysis

We first consider whether Pereira’s prior conviction is a “crime 

of violence” under the “enumerated offenses” in application note 

1(B)(iii) to Section 2L1.2 of the 2014 Guidelines. We conclude that it is 

not.

* * *

Where the Guidelines enumerate an offense as a “crime of 

violence,” we undertake what is known as the “categorical 

 10 United States v. Walker, 595 F.3d 441, 443 (2d Cir. 2010).

11 United States v. Zillgitt, 286 F.3d 128, 131 (2d Cir. 2002).

12 United States v. Jones, 878 F.3d 10, 14–15 (2d Cir. 2017) (“Jones II”) (internal 

quotation marks omitted).
11

approach.”13 We “look only to the statutory definitions—i.e., the 

elements—of a defendant’s prior offenses, and not to the particular 

facts underlying those convictions.”14 We then compare the elements 

of the statutory offense to “the generic, contemporary” definition of 

the offense.15 A prior conviction will constitute a “crime of violence”

for a sentencing enhancement “only if the statute’s elements are the 

same as, or narrower than, those of the generic offense.”16

In some cases, however, the defendant is convicted under a 

more complicated statute that criminalizes multiple acts in the 

alternative—thereby requiring a sentencing court to deduce which of 

these elements “was integral to the defendant’s conviction.”17 In these 

circumstances, we apply what is known as the “modified categorical 

approach.” This requires us to “look[ ] to a limited class of documents 

(for example, the indictment, jury instructions, or plea agreement and 

 13 Id. at 18.

14 Descamps v. United States, 570 U.S. 254, 261 (2013) (emphasis in original) 

(internal quotation marks omitted); see also United States v. Genao, 869 F.3d 136, 144 

(2d Cir. 2017) (same). Descamps involved the Armed Career Criminal Act 

(“ACCA”), not the Guidelines, but “we apply the same categorical approach 

irrespective of whether the enhancement is pursuant to the ACCA or the 

Guidelines.” Walker, 595 F.3d at 444 n.1.

15 Taylor v. United States, 495 U.S. 575, 598 (1990).

16 Descamps, 570 U.S. at 257.

17 Mathis v. United States, 136 S. Ct. 2243, 2249 (2016).
12

colloquy) to determine what crime, with what elements, a defendant 

was convicted of.”18

Here, because Pereira was convicted under a statute that 

criminalizes multiple acts in the alternative, we adopt the modified 

categorical approach. The government concedes that Pereira’s 

certificate of disposition “does not specify which subsection of N.Y. 

Penal Law § 160.10 was charged.”19 Ordinarily, we would therefore be 

required to determine “the least of the acts proscribed by the statute.”20

We need not do so here, however, because the outcome of that analysis

does not affect our conclusion.

* * *

Regardless of which particular aggravating factor set forth in

N.Y. Penal Law § 160.10 applies, we must consider whether the statute 

under which Pereira was convicted is the same as, or narrower than, 

the generic offense of robbery.21 His crime of conviction will not 

 18 Id.; see also Shepard v. United States, 544 U.S. 13, 26 (2005).

19 Appellee Br. at 4 n.2.

20 Jones II, 878 F.3d at 17 (internal quotation marks and alteration omitted).

21 This Court, discussing the so-called residual clause of former Guidelines 

Section 4B1.2(a)(2), recently observed that “it would seem that . . . robbery of any 

degree in New York qualifies as a crime of violence.” Jones II, 878 F.3d at 17

(emphasis in original); see also United States v. Dove, 884 F.3d 138, 152 (2d Cir. 2018) 

(describing Jones II as holding “that New York robbery, regardless of degree, is 

categorically a crime of violence pursuant to the residual clause”). The “residual 

clause” in effect allowed the rule to apply to situations not explicitly enumerated 
13

qualify as a “crime of violence” under the “enumerated offenses” if the

statute he was convicted of violating “sweeps more broadly than the 

generic crime.”22

 

within it. The holding in Jones II does not control in this case because Section 2L1.2

of the 2014 Guidelines does not include a “residual clause.” 

A court must be careful to distinguish between the categorical approach as 

applied to the two clauses. Under the “residual clause” analysis, a court asks 

whether the offense of conviction “involves conduct that presents a serious 

potential risk of physical injury to another.” Jones II, 878 F.3d at 15 (quoting U.S.S.G. 

§ 4B1.2(a)(2) (2015)); see also Johnson v. United States, 135 S. Ct. 2551, 2557 (2015)

(“Deciding whether the residual clause covers a crime thus requires a court to 

picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to 

judge whether that abstraction presents a serious potential risk of physical 

injury.”(internal citation omitted)).

In contrast, under the “enumerated offenses” analysis, a court asks whether 

the offense of conviction is substantially similar to, or narrower than, the generic 

definition of the offense. See Mathis, 136 S. Ct. at 2248 (“To determine whether a 

prior conviction is for generic burglary (or other listed crime) courts apply what is 

known as the categorical approach: They focus solely on whether the elements of 

the crime of conviction sufficiently match the elements of generic burglary, while 

ignoring the particular facts of the case.”).

A court also applies the categorical approach to the “force clause.” As will 

be discussed further below, the “force clause” analysis asks whether the predicate 

offense “has as an element the use, attempted use, or threatened use of physical 

force against the person of another.” U.S.S.G. § 2L1.2, cmt. 1(B)(iii) (2014); see also 

Stuckey v. United States, 878 F.3d 62, 70 (2d Cir. 2017).

22 Descamps, 570 U.S. at 261.
14

The generic definition of an offense “is the ‘contemporary 

understanding’ of the term.”23 This understanding will often be the 

“sense in which the term is now used in the criminal codes of most 

States.”24 In some cases, however, “courts also consult other sources, 

including federal criminal statutes, the Model Penal Code, scholarly 

treatises, and legal dictionaries.”25

Surveying these sources, we conclude that the generic definition 

of robbery includes, as an element, that the stolen property be taken 

“from the person or in the presence of” the owner or victim. The

statutes and decisions of the highest courts in at least twenty-seven 

states and the District of Columbia include the presence element in 

their definitions of robbery.26 The presence element is also found in 

 23 United States v. Castillo, 896 F.3d 141, 150 (2d Cir. 2018) (quoting Taylor, 

495 U.S. at 593).

24 Taylor, 495 U.S. at 598.

25 Castillo, 896 F.3d at 150.

26 See, e.g., Alaska Stat. § 11.41.510(a) (“immediate presence and control of 

another”); Ariz. Rev. Stat. § 13-1902(A) (“from his person or immediate presence”); 

Cal. Penal Code § 211 (“personal property in the possession of another, from his 

person or immediate presence”); Colo. Rev. Stat. § 18-4-301(1) (“from the person or 

presence of another”); D.C. Code § 22-2801 (“from the person or immediate actual 

possession of another”); Fla. Stat. § 812.13(1) (“from the person or custody of 

another”); Ga. Code Ann. § 16-8-40(a) (“from the person or the immediate presence 

of another”); Idaho Code § 18-6501 (“from his person or immediate presence”); Ill. 

Comp. Stat. Ch. 720, § 5/18-1(a) (“from the person or presence of another”); Ind. 

Code § 35-42-5-1 (“from another person or from the presence of another person”); 

Kan. Stat. § 21-5420(a) (“from the person or presence of another”); La. Rev. Stat. 

§ 14:65(A) (“from the person of another or that is in the immediate control of 

another”); Ball v. State, 699 A.2d 1170, 1183 (Md. 1997) (“from his person or in his 
15

law treatises27 and legal dictionaries.28 And the United States Code 

includes a presence element in its definition of robbery.29

New York, however, deliberately revised its robbery statute to 

eliminate the presence element.30 In 1961, the New York Legislature 

“created a Temporary State Commission whose purpose was to revise 

 

presence”); Minn. Stat. § 609.24 (“from the person or in the presence of another”); 

Miss. Code § 97-3-73 (“in his presence or from his person”); Neb. Rev. Stat. § 28-

324(1) (“from the person of another”); Nev. Rev. Stat. § 200.380(1) (“from the person 

of another, or in the person’s presence”); N.M. Stat. § 30-16-2 (“from the person of 

another or from the immediate control of another”); Okla. Stat. tit. 21, § 791 (“from 

his person or immediate presence”); State v. Rolon, 45 A.3d 518, 525 (R.I. 2012) 

(“from the person of another, or in his presence” (internal quotation marks 

omitted)); State v. Rosemond, 589 S.E.2d 757, 758 (S.C. 2003) (“from the person of 

another or in his presence”); S.D. Cod. Laws § 22-30-1 (“from the other’s person or 

immediate presence”); Tenn. Code § 39-13-401(a) (“from the person of another”); 

Vt. Stat., tit. 13, § 608(a) (“from his or her person or in his or her presence”); Pierce 

v. Commonwealth, 138 S.E.2d 28, 31 (Va. 1964) (“from his person or in his presence”); 

Wash. Rev. Code § 9A.56.190 (“from the person of another or in his or her 

presence”); W. Va. Code § 61-2-12(c)(1) (“from the person or presence of another”); 

Wis. Stat. § 943.32(1) (“from the person or presence of the owner”).

27 See, e.g., 3 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 20.3 (3d ed. 

2017) (Robbery includes the requirement “that the property be taken from the 

person or presence of the other.”).

28 See, e.g., Robbery, BLACK’S LAW DICTIONARY (10th ed. 2014) (“The illegal 

taking of property from the person of another, or in the person’s presence, by

violence or intimidation; aggravated larceny.”).

29 18 U.S.C. § 1951(b)(1) (“from the person or in the presence of another”).

30 See People v. Smith, 79 N.Y.2d 309, 313–14 & n.3 (1992) (summarizing 

statutory history).
16

and simplify the existing Penal Law.”31 The Commission proposed 

eliminating the “‘from the person or in the presence of’ limitation 

[because it] would exclude a variety of forcible thefts that were 

‘robberies in spirit.’”32 The New York Legislature subsequently 

adopted the proposal, expanding the definition of robbery by not 

including a presence element. Under New York law, robbery can now 

be committed through the use or threat of force to compel another “to 

deliver up” property not in his presence, or simply “to engage in other 

conduct which aids in the commission of the larceny.”33

Because generic robbery contains an element not found in New 

York’s robbery statute, the New York statute “sweeps more broadly 

than the generic crime.”34 Accordingly, robbery under New York law 

does not qualify as a crime of violence under the “enumerated 

offenses” in application note 1(B)(iii) to Section 2L1.2 of the 2014 

Guidelines. 35

Pereira, of course, was convicted of attempted robbery in the 

second degree in violation of N.Y. Penal Law §§ 110.00 and 160.10, not 

simple robbery. But none of the aggravating factors set forth in N.Y. 

 31 Id. at 313.

32 Id. at 314.

33 N.Y. Penal Law § 160.00(2).

34 Descamps, 570 U.S. at 261.

35 Id. at 257.
17

Penal Law § 160.10 creates a requirement of presence.36 Nor does New 

York’s definition of criminal attempt.37

We therefore hold that Pereira’s prior conviction for attempted 

robbery in the second degree in violation of N.Y. Penal Law §§ 110.00 

and 160.10 is not a “crime of violence” under the “enumerated 

offenses” in application note 1(B)(iii) to Section 2L1.2 of the 2014 

Guidelines.

C. The “Force Clause” Analysis

We must next consider whether Pereira’s prior conviction 

qualifies as a “crime of violence” under the “force clause” of 

application note 1(B)(iii) to Section 2L1.2 of the 2014 Guidelines. We 

conclude that it does.

To determine whether a particular prior conviction is a “crime 

of violence” under the “force clause,” we again apply the categorical 

approach or its modified counterpart.38 But the analysis differs from 

that applied to an “enumerated offense.” Instead of asking whether 

the statutory elements of the predicate offense “are the same as, or 

 36 See N.Y. Penal Law § 160.10.

37 See id. § 110.00 (“A person is guilty of an attempt to commit a crime when, 

with intent to commit a crime, he engages in conduct which tends to effect the 

commission of such crime.”).

38 See Stuckey, 878 F.3d at 66–67. As discussed above, the statute at issue 

criminalizes multiple acts in the alternative. We therefore apply the modified 

categorical approach.
18

narrower than, those of the generic offense,”39 we consider whether 

the predicate offense “has as an element the use, attempted use, or 

threatened use of physical force against the person of another.”40 In so 

doing, we focus on “the minimum criminal conduct necessary for 

conviction under a particular statute.”41

Not all criminal offenses involving actual, attempted, or 

threatened physical contact qualify as “crimes of violence” under the 

“force clause.” In Johnson v. United States, the Supreme Court clarified 

that the phrase “physical force” in the “force clause” of the Armed 

Career Criminal Act, 18 U.S.C. § 924(b)(2)(B), “means violent force—

that is, force capable of causing physical pain or injury to another 

person.”42 The battery statute at issue there had, as an element, that the 

defendant “actually and intentionally touched the victim.”43 The 

Supreme Court held that this statute did not qualify as a “crime of 

violence” because it could be committed “by any intentional physical 

contact, no matter how slight.”44

 39 Descamps, 570 U.S. at 257.

40 U.S.S.G. § 2L1.2, cmt. 1(B)(iii) (2014); see also Stuckey, 878 F.3d at 70.

41 United States v. Hill, 890 F.3d 51, 55 (2d Cir. 2018) (internal quotation marks 

omitted).

42 559 U.S. 133, 140 (2010) (emphasis in original).

43 Id. at 137 (internal quotation marks and alterations omitted).

44 Id. at 138 (emphasis in original) (internal quotation marks omitted).
19

Pereira argues that, after Johnson, we must overturn our earlier 

holding in United States v. Spencer that robbery under New York law is 

a “crime of violence” under the “force clause.”45 We disagree.

Unlike the battery statute in Johnson, New York’s robbery statute

cannot be violated “by any intentional physical contact, no matter how 

slight.”46 New York defines robbery as “forcible stealing,” which 

requires “us[ing] or threaten[ing] the immediate use of physical force 

upon another person.”47 That level of physical force must be enough 

“to prevent resistance to the taking or to compel the owner to deliver 

up the property.”48 By its plain language, then, New York’s robbery 

statute includes as an element the use of violent force.

The New York Court of Appeals recently supplied support for 

this interpretation of New York robbery in People v. Jurgins.49 Jurgins 

challenged his second felony offender adjudication on the grounds 

 45 United States v. Spencer, 955 F.2d 814, 820 (2d Cir. 1992). In United States v. 

Jones, this Court initially reversed Spencer on the basis of perceived supervening 

Supreme Court guidance. United States v. Jones, 830 F.3d 142 (2d Cir.), vacated, 838 

F.3d 296 (2d Cir. 2016) (“Jones I”). But Jones I was subsequently vacated and our 

ruling in Spencer was reinstated. See Massey v. United States, 895 F.3d 248, 251 n.6 

(2d Cir. 2018) (describing sequence of events).

46 Johnson, 559 U.S. at 138 (emphasis in original) (internal quotation marks 

omitted).

47 N.Y. Penal Law § 160.00.

48 People v. Jurgins, 26 N.Y.3d 607, 614 (2015).

49 Id.
20

that his prior Washington, DC conviction for attempted robbery was 

“not equivalent to any New York felony.”50 He argued that robbery 

under Washington, DC law—unlike robbery under New York law—

could be committed by such little force as “sudden or stealthy seizure” 

or a “snatching.”51 The Court of Appeals agreed with the parties that

“taking ‘by sudden or stealthy seizure or snatching,’ would not be 

considered a robbery or other felony in New York, inasmuch as it is 

akin to pickpocketing, or the crime of jostling, which is a misdemeanor 

in this state.”52

Pereira identifies several New York Appellate Division

decisions that could be read to suggest that robbery does not 

necessarily involve the use of violent force. For example, Pereira cites 

a case in which defendants were convicted of robbery by forming “a 

human wall that blocked the victim’s path,”53 and another in which

the defendant physically “block[ed] the victim’s passage.”54

Pereira minimizes the conduct presented in these cases. The 

“human wall” was no mere obstacle to the victim’s pursuit of the 

robber; it constituted a threat that pursuit would lead to a violent 

confrontation. So too did blocking the victim’s passage in the latter 

 50 Id. at 610.

51 Id. at 614–15.

52 Id. at 614.

53 People v. Bennett, 631 N.Y.S.2d 834, 834 (App. Div. 1995).

54 People v. Patton, 585 N.Y.S.2d 431, 431 (App. Div. 1992).
21

case. Only by backing down in the face of these threats did the victims 

avoid physical force.

Finally, Pereira argues his prior offense of attempted robbery in 

the second degree does not qualify as a “crime of violence” because 

“attempted robbery can be committed without the defendant using, 

attempting to use, or threatening to use physical force.”55 This 

argument misrepresents criminal attempt under New York law. 

Regarding attempt, the state’s highest court requires that the action 

taken by an accused be “so near to its accomplishment that in all 

reasonable probability the crime itself would have been committed, 

but for timely interference.”56

In short, we conclude that “robbery” as it is defined in N.Y.

Penal Law § 160.00, qualifies as a “crime of violence” under the “force 

clause” of application note 1(B)(iii) to Section 2L1.2 of the 2014 

Guidelines. Because that definition of robbery—forcible stealing—is 

common to all degrees of robbery under New York law, we hold that 

robbery in any degree is a crime of violence under the “force clause” 

of application note 1(B)(iii) to Section 2L1.2 of the 2014 Guidelines. We 

also hold that attempted robbery under New York law is a “crime of 

violence” under the “force clause.”

 55 Appellant Br. at 16.

56 People v. Mahboubian, 74 N.Y.2d 174, 196 (1989) (internal quotation marks 

omitted); see also People v. Bracey, 41 N.Y.2d 296, 300 (1977) (“[I]t must be proven 

that the defendant acted to carry out his intent.”).
22

III. CONCLUSION

To summarize, we hold as follows:

(1) Attempted robbery in the second degree, in violation of N.Y. 

Penal Law §§ 110.00 and 160.10, is not a “crime of violence” 

under the “enumerated offenses” of application note 1(B)(iii) 

to Section 2L1.2 of the November 1, 2014 edition of the 

Sentencing Guidelines; and

(2) Robbery and attempted robbery in any degree under New 

York law are “crimes of violence” under the “force clause” of 

application note 1(B)(iii) to Section 2L1.2 of the November 1, 

2014 edition of the Sentencing Guidelines.

For the foregoing reasons, we AFFIRM the District Court’s 

judgment.